MT for Elections Reform v. State of MT

2023 MT 226

Opinion

11/22/2023

OP 23-0634 Case Number: OP 23-0634

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 226

MONTANANS FOR ELECTION REFORM ACTION FUND, ROB COOK, FRANK GARNER, BRUCE TUTVEDT, DOUG CAMPBELL, TED KRONEBUSCH, and BRUCE GRUBBS,

Petitioners,

v.

AUSTIN KNUDSEN, in his official capacity as MONTANA ATTORNEY GENERAL; and CHRISTI JACOBSEN, in her official capacity as MONTANA SECRETARY OF STATE,

Respondents.

ORIGINAL PROCEEDING: Petition for Declaratory Judgment

COUNSEL OF RECORD:

For Petitioners:

Rob Cameron, Jackson, Murdo & Grant, P.C., Helena, Montana

Sean T. Morrison, Morrison Law Firm PLLC, Helena, Montana

Martha Sheehy, Sheehy Law Firm, Billings, Montana

For Respondents:

Austin Knudson, Montana Attorney General, Michael Russell, Assistant Attorney General, Helena, Montana

Emily Jones, Jones Law Firm, PLLC, Billings, Montana

Decided: November 22, 2023

Filed:

' ,-6A•-if __________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion and Order of the Court.

¶1 Petitioners Montanans for Election Reform Action Fund, et al. (“MER”), seek

declaratory judgment on original jurisdiction under M. R. App. P. 14(4). MER argues it is

entitled to declaratory judgment that: (1) the Attorney General’s determination that the

subject ballot issue is legally insufficient is incorrect; and (2) the Attorney General shall

prepare a ballot statement pursuant to § 13-27-226, MCA, and forward the statement to the

Montana Secretary of State within five days of this Court’s decision. At our invitation,

Attorney General Austin Knudsen has responded to the petition.

¶2 We consider the following issue:

Did the Attorney General err in concluding that MER’s proposed ballot issue is legally insufficient because it violates the separate-vote requirement of Article XIV, Section 11, of the Montana Constitution?

¶3 On August 16, 2023, MER submitted the text of a proposed constitutional initiative

and proposed ballot statements for the 2024 ballot to Secretary of State Christi Jacobsen.

The Secretary designated the submission as Ballot Issue 12 (“BI-12”). BI-12 proposes to

amend Article IV of the Montana Constitution to add a new Section 9. This section would

change Montana’s current party primary election system to a primary election for specified

offices open to all candidates and voters, and the top four candidates for each of the

specified offices would then advance to the general election.

¶4 MER submitted finalized initiative text and ballot statements to Jacobsen on

September 5, 2023, and Jacobsen referred the matter to the Attorney General the following

day. On October 13, 2023, the Attorney General determined that BI-12 is legally

2 insufficient because it violates Article XIV, Section 11, of the Montana Constitution. On

October 16, 2023, the Secretary provided notice of the Attorney General’s determination

to MER. MER then petitioned this Court for declaratory relief on original jurisdiction on

October 26, 2023.

¶5 Section 3-2-202(3)(a), MCA, provides this Court original jurisdiction to review the

Attorney General’s legal sufficiency determination in this matter. It is within the Attorney

General’s authority to determine whether a proposed ballot issue complies with the

separate-vote provision of Article XIV, Section 11, of the Montana Constitution.

Monforton v. Knudsen, 2023 MT 179, ¶ 11, 413 Mont. 367, ___ P.3d ___. Thus we

consider whether the Attorney General correctly concluded that BI-12 violates Article

XIV, Section 11, of the Montana Constitution, because it proposes multiple constitutional

amendments.

¶6 BI-12 would amend Article IV of the Montana Constitution by adding a new Section

9 that would provide as follows:

Section 9. Top-four primary election for certain offices. (1) As used in this section, the term “covered office” means the office of governor, lieutenant governor, secretary of state, auditor, attorney general, superintendent of public instruction, state representative, state senator, United States representative, United States senator, and other offices as provided by law.

(2) The election for a covered office must consist of a primary election followed by a general election in which each of the four candidates for a covered office who receive the most votes in the primary election, and only those candidates, shall appear on the general election ballot.

(3) In an election for a covered office, the following conditions apply:

3 (a) All candidates, regardless of political party preference, affiliation, nomination or lack of political party preference, affiliation, or nomination shall appear on the same primary election ballot separated by office.

(b) Qualified electors, regardless of political party preference or affiliation or a lack thereof, may participate in the primary election for each covered office for which they are eligible to vote.

(c) Each qualified elector may vote for no more than one candidate for each office in the primary election.

(d) If it cannot be determined which four candidates received the most votes in the primary election because two or more candidates are tied, the tie shall be broken as provided by law.

(e) If four or fewer candidates for a covered office qualify for the primary election ballot, a primary election is not required and all candidates shall appear on the general election ballot.

(f) A space for write-in candidates may appear on the primary election ballot as provided by law.

(g) A candidate may not be required to obtain the endorsement or nomination of any political party or organization in order to qualify for the primary election ballot.

(h) If the legislature requires candidates to obtain signatures to qualify for the primary election ballot, the number of signatures required may not exceed 5% of the total votes cast for the candidate elected for the same office in the last general election for that office.

(i) A candidate may choose to have displayed next to the candidate’s name on the ballot the candidate’s preference for a political party or that the candidate prefers no political party. The format options must be as follows: “Party Preference __________________” or “No Party Preference.”

(j) The ballot may not indicate that a candidate has been endorsed by or nominated by any political party.

(k) Each ballot must include a clear and conspicuous statement informing voters that a candidate’s indicated political party preference does not imply that the candidate is nominated or endorsed by the political party or that the political party approves of or associates with the candidate. 4 (4) This section may not be construed to amend, repeal, or modify Article VI, section 2 of the Montana constitution.

(5) This section does not apply to special elections for covered offices.

¶7 Recently, we addressed the requirements of Article XIV, Section 11, of the Montana

Constitution.

The proper inquiry is whether, if adopted, the proposal would make two or more changes to the Constitution that are substantive and not closely related. We have employed a definition of substantive as “an essential part or constituent or relating to what is essential.” Then, numerous factors may be considered in determining whether the provisions of a proposed constitutional amendment are closely related, including: whether various provisions are facially related, whether all the matters addressed by the proposition concern a single section of the constitution, whether the voters or the legislature historically has treated the matters addressed as one subject, and whether the various provisions are qualitatively similar in their effect on either procedural or substantive law. In summary, if a proposal would effect two or more changes that are substantive and not closely related, the proposal violates the separate-vote requirement because it would prevent the voters from expressing their opinions as to each proposed change separately.

Monforton, ¶ 12 (cleaned up).

¶8 Here, in the Legal Sufficiency Review, the Attorney General asserted that BI-12

fails to comply with Article XIV, Section 11, of the Montana Constitution, in four ways:

(1) Section 3 adds provisions that are not closely related to the creation of a top-four

primary because these provisions collectively “represent a choice [as to] whether Montana

should allow political parties to nominate or endorse candidates on the ballot.”

(2) Section 1 provides a separate decision point for voters because it limits the applicability

of this process to certain public offices while omitting others. (3) Section 3(h) provides a

separate decision point because voters cannot vote for a top-four system that prohibits a

5 signature requirement or requires a higher signature threshold. (4) BI-12, as a whole and

specifically within Sections 2 and 3(h), implicates Article IV, Section 3, of the Montana

Constitution, because it limits the Legislature’s constitutional authority to regulate the

administration of elections.

¶9 MER argues, however, that each of these four components is integral to a top-four

primary system. MER asserts that the proposed top-four primary system would not

function correctly if it did not eliminate political party endorsements or nominations as a

prerequisite to appearing on the ballot, identify the offices to which the system would

apply, and limit signature-gathering requirements.

¶10 MER first argues that the Attorney General has misconstrued the effect of

Section 3’s provisions on political party nominations. Although the Attorney General

concluded that these provisions affect political parties’ ability to nominate or endorse

candidates, MER asserts that they do not interfere with political parties’ ability to do so.

MER asserts that the Attorney General erroneously refers to the primary election under

BI-12 as an “all-party” primary when it would actually create an open primary. MER

points to Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 453, 128

S. Ct. 1184, 1192 (2008), in which the U.S. Supreme Court upheld the constitutionality of

a similar open primary system, explaining that Washington’s proposed primary system

“does not, by its terms, choose parties’ nominees. . . . The law never refers to the candidates

as nominees of any party, nor does it treat them as such. . . . Whether parties nominate

their own candidates outside the state-run primary is simply irrelevant.” We agree with

MER that the Attorney General is incorrect as to the effect that Section 3 would have on 6 political party nominations; because it does not affect those nominations, it would not

create a separate decision point requiring a separate vote.

¶11 MER next argues that Section 1’s specification of offices to which the open primary

system would apply is closely related to BI-12’s purpose. It asserts that BI-12 would apply

to specific federal and statewide partisan offices but not to non-partisan or local offices. It

argues that the Attorney General erred in concluding that the question of which offices to

include or exclude from this system creates a separate decision point for voters because

non-partisan and local office elections are distinct from federal and state partisan offices,

and it would be impractical to require voters to vote on the inclusion or exclusion of every

office separately. MER argues that requiring a separate vote on each and every elected

office would unduly restrict constitutional change. Mont. Ass’n of Counties v. State, 2017

MT 267, ¶ 30, 389 Mont. 183, 404 P.3d 733 (“MACo”). Rather, MER argues, the

enumerated offices present the voters with a binary choice: apply the top-four system to all

federal and statewide partisan offices or reject it.

¶12 In MACo, ¶ 15, we explained that the separate-vote requirement of Article XIV,

Section 11, of the Montana Constitution, has two objectives: (1) to avoid voter confusion

by ensuring that proposals are not misleading, conceal their effects, or are not readily

understandable; and (2) to avoid “logrolling,” or combining unrelated amendments into a

single measure that might not otherwise obtain majority support. The specification of

offices to which BI-12 would apply does not run afoul of these objectives. Section 1 clearly

sets forth which offices’ elections would be affected by its enactment. It also does not

combine unrelated amendments. As MER explains, BI-12 would affect federal and 7 statewide partisan offices but not nonpartisan and local offices. Moreover, in considering

whether the specification of offices is closely related to the creation of a top-four primary

system, we cannot envision how one could design a primary system without specifying the

offices to which it would apply. We therefore conclude that the designation of “covered

offices” in Section 1 does not violate the separate vote requirement of Article XIV, Section

11, of the Montana Constitution.

¶13 Next, MER argues that the Attorney General erred in concluding that the signature

gathering provision in Section 3(h) creates a separate decision point for voters because the

five-percent cap is an integral part of, and thus closely related to, the purpose of a top-four

primary. MER asserts that the purpose of a top-four primary is to ensure that candidates

can reasonably access the ballot. It argues that a reasonable signature cap is essential to

ensuring that the Legislature cannot functionally convert a top-four primary into a top-two

primary by requiring onerous signature gathering that would serve to bar candidates from

the ballot.

¶14 In response, the Attorney General asserts that the Montana Constitution sets

different signature requirements for different activities. It argues that this illustrates that

determining the appropriate signature requirement is a separate consideration for which

voters should be able to vote upon separately.

¶15 In Monforton, we upheld the Attorney General’s rejection of a proposed ballot issue

because, while amending only one section of the Montana Constitution, we observed, “To

say that [Ballot Issue 2’s] proposed amendments concern only one section of the

Constitution is correct only in the sense that all of them are parked there, turning a short 8 constitutional section into a long one.” Monforton, ¶ 14. We concluded that the ballot

issue in that case would have both revised the existing language of Article VIII, Section 3,

of the Montana Constitution, and also added a “new function” on the State’s current

valuation duty by also capping ad valorem taxes. Monforton, ¶¶ 15-16. We agreed with

the Attorney General’s explanation that “voters cannot express support for limiting

increase in annual property valuations, while also opposing an overall cap on the level of

taxes levied against a property,” and we thus concluded that the proposed limitation on

property valuations required a separate vote from the limitation on property tax increases.

Monforton, ¶ 17.

¶16 Here, the signature-gathering limitation is not a separate function but is rather, as

MER asserts, an integral part of the top-four primary system BI-12 proposes. We thus

disagree with the Attorney General that the signature-gathering limitation is not closely

related to the remainder of BI-12.

¶17 Finally, MER disagrees with the Attorney General’s assertion that BI-12 is

essentially a separate amendment because it implicates the Legislature’s authority to

regulate elections. In its response to the present petition, the Attorney General asserts,

“BI-12’s implicit limitation of the Legislature’s constitutional authority amounts to yet

another separate amendment requiring a separate vote.”

¶18 Article IV, Section 3, of the Montana Constitution provides, “The legislature shall

provide by law the requirements for residence, registration, absentee voting, and

administration of elections. It may provide for a system of poll booth registration, and shall

insure the purity of elections and guard against abuses of the electoral process.” MER 9 argues that BI-12 does not implicate Article IV, Section 3, of the Montana Constitution

because its adoption would not impede, hinder, or invade the Legislature’s authority to

regulate residence, voter registration, absentee voting, or the administration of elections.

¶19 While the Attorney General argues that BI-12 restrains the Legislature’s ability to

regulate primary elections, MER alleges that BI-12 would create a new primary system

that the Legislature would then administer. In MACo, we held that a constitutional

initiative that impliedly changed Montana’s Constitution in numerous ways that we

considered to be both substantive and not closely related was void for violating the

separate-vote requirement of Article XIV, Section 11, of the Montana Constitution. MACo,

¶¶ 52, 54. In the present case, however, we agree with MER that BI-12 does not implicate

Article IV, Section 3, of the Montana Constitution. Article IV, Section 3, grants the

Legislature the authority to “provide by law the requirements,” and BI-12 would not affect

the Legislature’s authority to “provide by law.” Thus there is no separate amendment that

would require a separate vote.

¶20 We therefore hold that the Attorney General erred in concluding that MER’s

proposed ballot issue is legally insufficient because it violates the separate-vote

requirement of Article XIV, Section 11, of the Montana Constitution.

¶21 IT IS THEREFORE ORDERED that the petition for original jurisdiction is

ACCEPTED and GRANTED as an original proceeding in the form of a declaratory

judgment action under M. R. App. P. 14(4).

10 ¶22 IT IS FURTHER ORDERED that the Attorney General shall prepare a ballot

statement pursuant to § 13-27-226, MCA, and forward the statement to the Montana

Secretary of State within five days of this Opinion and Order.

The Clerk is directed to send a copy of this Opinion and Order to all counsel of

record in this matter.

DATED this 22nd day of November, 2023.

/S/ MIKE McGRATH

We Concur:

/S/ BETH BAKER /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON /S/ JIM RICE